Storrs, C. J.
On the facts found in this case, we are of the opinion that, independently of those which relate to the custom which prevailed at New London in reference to the subject of the agreement between these parties, the plaintiff is entitled to relief. By the terms of that agreement, it was the duty of the defendants, on its fulfillment by the plaintiff, to pay to the latter his share, being the one-fifteenth part of the net proceeds of the oil and bone, and also one dollar on each barrel of sperm oil obtained during the voyage performed, as soon after its termination as it could be sold and the voyage made up by the defendants or their ships’ agent, after first deducting the advancements and supplies which had been made to the plaintiff. We do not put so rigid a construction on that contract as to require the defendants, at all events, to dispose of the articles composing the cargo immediately on the return of the vessel. There might be, from temporary causes, an extraordinary and sudden depression in their market value, which would justify the defendants, who had an interest in the property in common with the plaintiffs, in conducting as prudent men would under those circumstances, and deferring a sale of them until those causes should cease to operate. But on the other hand, they would not be warranted in withholding the property from sale because they might believe, however reasonably, that it would rapidly rise in the market, or from any other motive of mere speculation. We can not lose sight of the fact that the proportion of the proceeds to which the officers and crew of the vessel were entitled under this contract, was to be received by them only as a compensation for their services [475]*475during the voyage, and that, considering their situation, they would naturally expect that those proceeds would be realized without any unnecessary or unusual delay; and it would be just that, unless the owners of the vessel could obtain their consent to wait, the property, at least so far as was necessary to satisfy the claims of the officers and crew, should be expeditiously disposed of for their benefit. And the nature of their occupation repels the idea that, in paying over to them their shares of the proceeds, it was understood that there was to be any unnecessary or considerable delay. The defendants were, in our opinion, bound to pay the officers and crew their shares of the proceeds of the cargo as soon after the return of the vessel as it could be sold and the voyage made up by the defendants, after the stipulated deductions, allowing them a reasonable and convenient opportunity for that purpose. The oil is found to have been an article which could readily be sold, and we can not doubt, although it is not found in terms, that such an opportunity had been afforded when this bill was brought. It is very obvious that, under ordinary circumstances, a sufficient time had elapsed to enable the defendants, without inconvenience, to sell and receive the proceeds of the oil, respecting which only, the question is made in this case; and no extraordinary or special reason is disclosed which would excuse them fora delay beyond that time, unless it is found in the circumstance that it could have been sold only for some price between sixty-five and seventy cents per gallon, at which latter sum it had been estimated by the defendants when it was discharged from the vessel and measured. We are unable to pereeive on what ground, upon the facts presented to us, the defendants, as it respected the plaintiff, were at liberty in this case to wait for any particular rise in the market, or why they should not at least have disposed of sufficient to pay the plaintiff’s claim on it. Upon the principle that the defendants were justified in holding on to the property for a rise in the market, they would have been accountable only for the plaintiff’s proportion of the avails, as they might have been diminished if there had been a fall. We do not think that [476]*476they had any such implied, as it is conceded there was no such express, authority from the plaintiff. The reasonable time for disposing of the property is to be determined without any regard to the ordinary fluctuations of its price in market. Without considering, therefore, the custom which is found to have prevailed at New London in reference to agreements like that in question, we think that the plaintiff would be entitled to recover the value of what would have been, according to the contract, his share of what was obtained during the voyage, if the oil had been seasonably sold, and estimating it at its market value, after making the deductions therein provided for.
But this is not the true ground on which the decision of this case should be placed. We think that the evidence adduced by the plaintiff, to prove a custom and usage prevailing at the port of New London, when the agreement between these parties was made, respecting the subject of it, was admissible, and that the plaintiff’is entitled to have his rights determined by it. It was one of the stipulations of that agreement that the parties should be subject to the usages and custom of that port in reference to the subject of that agreement. It is found that originally the shipping articles, for voyages like that in which the plaintiff was engaged, were substantially like that in this case, except that they did not contain any clause in relation to payment of the captain and crew after the oil was sold, and that then it was the general practice to apportion and deliver to them respectively their shares of the oil and bone specifically,—that the shipping articles were afterwards altered by inserting a clause providing that the oil should be sold and the voyage made up, and payment made to them as is provided in the agreement in the present case,—that about the time of such alteration oil began to be sold on credit, and in consequence of those changes the practice of apportioning the oil has been substantially discontinued, and a new practice, induced by the necessities of the mariners, the convenience of owners, and the giving of credit, grew up, and soon after that alteration, obtained, which became and between the last ten and [477]*477fifteen years has been general, to discharge and guage the oil, and weigh the bone, estimate their market value, deduct from five to seven per cent., according to circumstances, for commission, expenses and guaranty, and pay off the captain and crew forthwith upon that basis, in case the captain and crew chose to receive payment according to such estimate, in preference to waiting for the voyage to be made up after an actual sale of the cargo, and receiving payment for their services in money as expressed in the agreement, which it was optional with them to do.
The principal objection which is made as to the proof or effect of this custom, is, that it is variant from, and contradictory to, the clear terms of the written agreement between these parties in regard to the mode in which the plaintiff should be paid for his services. It is plain that, whether such a custom as is here shown could affect the agreement in this case if it constituted no part of the express contract1 between the parties, but was introduced, as usages usually are, for the purpose of expounding the agreement, a point which it is unnecessary to decide, the objection here made has no application to this case; because the custom here shown constitutes a part of the express contract between the parties as contained in the written agreement. It is expressly referred to in the stipulation which has been mentioned respecting it, and therefore it is to be deemed to be a part of that stipulation as much as if it were set forth in terms in the written agreement.
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Storrs, C. J.
On the facts found in this case, we are of the opinion that, independently of those which relate to the custom which prevailed at New London in reference to the subject of the agreement between these parties, the plaintiff is entitled to relief. By the terms of that agreement, it was the duty of the defendants, on its fulfillment by the plaintiff, to pay to the latter his share, being the one-fifteenth part of the net proceeds of the oil and bone, and also one dollar on each barrel of sperm oil obtained during the voyage performed, as soon after its termination as it could be sold and the voyage made up by the defendants or their ships’ agent, after first deducting the advancements and supplies which had been made to the plaintiff. We do not put so rigid a construction on that contract as to require the defendants, at all events, to dispose of the articles composing the cargo immediately on the return of the vessel. There might be, from temporary causes, an extraordinary and sudden depression in their market value, which would justify the defendants, who had an interest in the property in common with the plaintiffs, in conducting as prudent men would under those circumstances, and deferring a sale of them until those causes should cease to operate. But on the other hand, they would not be warranted in withholding the property from sale because they might believe, however reasonably, that it would rapidly rise in the market, or from any other motive of mere speculation. We can not lose sight of the fact that the proportion of the proceeds to which the officers and crew of the vessel were entitled under this contract, was to be received by them only as a compensation for their services [475]*475during the voyage, and that, considering their situation, they would naturally expect that those proceeds would be realized without any unnecessary or unusual delay; and it would be just that, unless the owners of the vessel could obtain their consent to wait, the property, at least so far as was necessary to satisfy the claims of the officers and crew, should be expeditiously disposed of for their benefit. And the nature of their occupation repels the idea that, in paying over to them their shares of the proceeds, it was understood that there was to be any unnecessary or considerable delay. The defendants were, in our opinion, bound to pay the officers and crew their shares of the proceeds of the cargo as soon after the return of the vessel as it could be sold and the voyage made up by the defendants, after the stipulated deductions, allowing them a reasonable and convenient opportunity for that purpose. The oil is found to have been an article which could readily be sold, and we can not doubt, although it is not found in terms, that such an opportunity had been afforded when this bill was brought. It is very obvious that, under ordinary circumstances, a sufficient time had elapsed to enable the defendants, without inconvenience, to sell and receive the proceeds of the oil, respecting which only, the question is made in this case; and no extraordinary or special reason is disclosed which would excuse them fora delay beyond that time, unless it is found in the circumstance that it could have been sold only for some price between sixty-five and seventy cents per gallon, at which latter sum it had been estimated by the defendants when it was discharged from the vessel and measured. We are unable to pereeive on what ground, upon the facts presented to us, the defendants, as it respected the plaintiff, were at liberty in this case to wait for any particular rise in the market, or why they should not at least have disposed of sufficient to pay the plaintiff’s claim on it. Upon the principle that the defendants were justified in holding on to the property for a rise in the market, they would have been accountable only for the plaintiff’s proportion of the avails, as they might have been diminished if there had been a fall. We do not think that [476]*476they had any such implied, as it is conceded there was no such express, authority from the plaintiff. The reasonable time for disposing of the property is to be determined without any regard to the ordinary fluctuations of its price in market. Without considering, therefore, the custom which is found to have prevailed at New London in reference to agreements like that in question, we think that the plaintiff would be entitled to recover the value of what would have been, according to the contract, his share of what was obtained during the voyage, if the oil had been seasonably sold, and estimating it at its market value, after making the deductions therein provided for.
But this is not the true ground on which the decision of this case should be placed. We think that the evidence adduced by the plaintiff, to prove a custom and usage prevailing at the port of New London, when the agreement between these parties was made, respecting the subject of it, was admissible, and that the plaintiff’is entitled to have his rights determined by it. It was one of the stipulations of that agreement that the parties should be subject to the usages and custom of that port in reference to the subject of that agreement. It is found that originally the shipping articles, for voyages like that in which the plaintiff was engaged, were substantially like that in this case, except that they did not contain any clause in relation to payment of the captain and crew after the oil was sold, and that then it was the general practice to apportion and deliver to them respectively their shares of the oil and bone specifically,—that the shipping articles were afterwards altered by inserting a clause providing that the oil should be sold and the voyage made up, and payment made to them as is provided in the agreement in the present case,—that about the time of such alteration oil began to be sold on credit, and in consequence of those changes the practice of apportioning the oil has been substantially discontinued, and a new practice, induced by the necessities of the mariners, the convenience of owners, and the giving of credit, grew up, and soon after that alteration, obtained, which became and between the last ten and [477]*477fifteen years has been general, to discharge and guage the oil, and weigh the bone, estimate their market value, deduct from five to seven per cent., according to circumstances, for commission, expenses and guaranty, and pay off the captain and crew forthwith upon that basis, in case the captain and crew chose to receive payment according to such estimate, in preference to waiting for the voyage to be made up after an actual sale of the cargo, and receiving payment for their services in money as expressed in the agreement, which it was optional with them to do.
The principal objection which is made as to the proof or effect of this custom, is, that it is variant from, and contradictory to, the clear terms of the written agreement between these parties in regard to the mode in which the plaintiff should be paid for his services. It is plain that, whether such a custom as is here shown could affect the agreement in this case if it constituted no part of the express contract1 between the parties, but was introduced, as usages usually are, for the purpose of expounding the agreement, a point which it is unnecessary to decide, the objection here made has no application to this case; because the custom here shown constitutes a part of the express contract between the parties as contained in the written agreement. It is expressly referred to in the stipulation which has been mentioned respecting it, and therefore it is to be deemed to be a part of that stipulation as much as if it were set forth in terms in the written agreement. And if we suppose that the custom is recited therein in terms, all difficulty on this point vanishes. It requires no authority to show that it might be made a part of that agreement as well by reference as by recital. Nor if the custom were described in terms in connection with that stipulation, would it be repugnant to, or inconsistent with, the rest of the contract. It is only a modification or qualification of the preceding stipulation in the contract, in regard to the mode in which the plaintiff should be paid for his services, and providing for a different mode, in the exercise by him of the option reserved to him on that subject,—an alternative promise to perform a [478]*478certain act, or, at the option of the promisee, another act,— or perhaps rather, to do the same thing in one mode or in another at the option of the promisee. Such a stipulation is quite common, and we see no possible objection to its validity. It appears that, upon the arrival of the vessel, the cargo was discharged and its contents ascertained with all convenient dispatch ; that thereupon the oil was estimated by the defendants and a proper deduction made for expenses, commissions and guaranty; and that the inferior officers and crew were paid off and received their shares accordingly and in accordance with the general practice. Payment according to that practice being one of the terms of the agreement between these parties, the plaintiff was also entitled to receive his share upon the basis of that estimate. But it was necessary for him to make a demand thereof; and he relies on such a demand made of the managing owners of the vessel. That the demand was made of the proper persons there is no question; but the defendants except to the form of it as being for payment of his share at the market price and not at the estimate which had been made by the defendants. As the object of- a demand would be to signify to the defendants the choice, on the part of the plaintiff, to receive his share according to the custom or usage at that port and not according to the mode expressed in the agreement, it would certainly seem as if it should be made explicitly and so as to leave no room for doubt in the minds of the defendants as to his intention in that respect; and there would be much reason for saying, if this point depended merely on the form of the demand made by the plaintiff, that it would have been sufficient for the defendants simply to refuse to comply with it. But it is found that on this demand the defendants declined settling with the plaintiff until the oil was sold, and did not offer to pay and were not ready and willing to pay upon the basis upon which the crew were paid, that is, according to the estimate, as the usage would require, but declined on the ground that the plaintiff was not legally entitled to payment until the oil was sold. We think that this reply amounted to a refusal by the [479]*479defendants to pay the plaintiff according to the usage, which rendered any further demand on his part unnecessary. After a refusal to pay him at all before the oil was sold, and a denial of his right to payment until that time, it was not for the defendants to require from him a different form of demand, to which, if the defendants were, as the plaintiff had a right to believe, serious, a refusal must again be returned. The result is, that the plaintiff is entitled to recover according to the computation presented by the superior court in its finding, with interest brought down to the time of the decree.
The defendants claim that this bill should be dismissed on the ground that the plaintiff has adequate and complete remedy at law. If this were a case where a court of equity had not jurisdiction, under any circumstances, to grant relief, we should be obliged to sustain this objection; but as it appears by the agreement between these parties in reference to the compensation to which the plaintiff was to be entitled for his services, that the ascertainment of the fact whether the defendants were in arrear to the plaintiff, and if so to what amount, involves a matter of account between them, which is a subject over which a court of equity has general jurisdiction, we think it was incumbent on the defendants to make this objection at an earlier stage of the case. They should not be allowed to do so after an answer has been filed to the merits of the bill, and the expense of a hearing has been incurred, and therefore the court should not dismiss the bill on this ground, but should retain the cause and proceed to grant relief. Williams v. Niles & al., 24 Conn., 279.
In this opinion the other judges concurred.
Petition to be granted.